Exhibit 10.22


 


ASSURED GUARANTY LTD. REPLACEMENT AWARD PLAN
TRUST


(Effective 
April 21, 2004)


 

















 


TABLE OF CONTENTS


 


	
  ARTICLE I

  	
  THE TRUST AND THE PLAN

  	
   

  
	
   

  	
   

  
	
  I-1.

  	
   

  	
  Name

  	
   

  
	
   

  	
   

  
	
  I-2.

  	
   

  	
  Plan

  	
   

  
	
   

  	
   

  
	
  I-3.

  	
   

  	
  Grantor

  	
   

  
	
   

  	
   

  
	
  I-4.

  	
   

  	
  Administrator

  	
   

  
	
   

  	
   

  
	
  ARTICLE II

  	
  MANAGEMENT AND CONTROL OF TRUST FUND ASSETS

  	
   

  
	
   

  	
   

  
	
  II-1.

  	
   

  	
  The
  Trust Fund

  	
   

  
	
   

  	
   

  
	
  II-2.

  	
   

  	
  Trust Contributions

  	
   

  
	
   

  	
   

  
	
  II-3.

  	
   

  	
  Investment Guidelines

  	
   

  
	
   

  	
   

  
	
  II-4.

  	
   

  	
  General
  Powers

  	
   

  
	
   

  	
   

  
	
  II-5.

  	
   

  	
  Common
  Fund

  	
   

  
	
   

  	
   

  
	
  II-6.

  	
   

  	
  Relating to Trustees

  	
   

  
	
   

  	
   

  
	
  II-7.

  	
   

  	
  Trustee Who is a Participant

  	
   

  
	
   

  	
   

  
	
  ARTICLE III

  	
  ACCOUNTING AND DISTRIBUTION OF TRUST ASSETS

  	
   

  
	
   

  	
   

  
	
  III-1.

  	
   

  	
  Statement of Account

  	
   

  
	
   

  	
   

  
	
  III-2.

  	
   

  	
  Benefit Payments

  	
   

  
	
   

  	
   

  
	
  ARTICLE IV

  	
  COMPENSATION, EXPENSES AND LIABILITY

  	
   

  
	
   

  	
   

  
	
  IV-1.

  	
   

  	
  Compensation and Expenses

  	
   

  
	
   

  	
   

  
	
  ARTICLE V

  	
  TRUST FUND ASSETS

  	
   

  
	
   

  	
   

  
	
  V-1.

  	
   

  	
  Use of Trust Assets

  	
   

  
	
   

  	
   

  
	
  V-2.

  	
   

  	
  Claims of Creditors

  	
   

  
	
   

  	
   

  
	
  V-3.

  	
   

  	
  Claims of Participants

  	
   

  
	
   

  	
   

  
	
  V-4.

  	
   

  	
  Assets Contributed by the Company

  	
   

  
	
   

  	
   

  
	
  ARTICLE VI

  	
  TAX
  MATTERS

  	
   

  
	
   

  	
   

  
	
  ARTICLE VII

  	
  MISCELLANEOUS

  	
   

  
	
   

  	
   

  
	
  VII-1.

  	
   

  	
  Disagreement as to Acts

  	
   

  
	
   

  	
   

  
	
  VII-2.

  	
   

  	
  Person Dealing with Trustees

  	
   

  
	
   

  	
   

  
	
  VII-3.

  	
   

  	
  Evidence

  	
   

  
	
   

  	
   

  
	
  VII-4.

  	
   

  	
  Waiver of Notice

  	
   

  
	
   

  	
   

  
	
  VII-5.

  	
   

  	
  Counterparts

  	
   

  
	
   

  	
   

  
	
  VII-6.

  	
   

  	
  Governing
  Laws

  	
   

  
	
   

  	
   

  
	
  VII-7.

  	
   

  	
  Successors,
  Etc.

  	
   

  
					



 


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  VII-8.

  	
   

  	
  Service of Legal Process

  	
   

  
	
   

  	
   

  
	
  ARTICLE VIII

  	
  CHANGES OF TRUSTEES

  	
   

  
	
   

  	
   

  
	
  VIII-1.

  	
   

  	
  Resignation

  	
   

  
	
   

  	
   

  
	
  VIII-2.

  	
   

  	
  Removal of Trustee

  	
   

  
	
   

  	
   

  
	
  VIII-3.

  	
   

  	
  Powers Pending Appointment of Successor
  Trustee

  	
   

  
	
   

  	
   

  
	
  VIII-4.

  	
   

  	
  Duties of Resigned or Removed Trustees and
  of Successor Trustee

  	
   

  
	
   

  	
   

  
	
  ARTICLE IX

  	
  AMENDMENT,
  REVOCATION AND TERMINATION

  	
   

  
	
   

  	
   

  
	
  IX-1.

  	
   

  	
  Amendment and Revocation

  	
   

  
	
   

  	
   

  
	
  IX-2.

  	
   

  	
  Distribution of Assets Upon Revocation or
  Termination

  	
   

  
					



 


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ASSURED GUARANTY LTD. REPLACEMENT AWARD PLAN
TRUST


 


THIS TRUST AGREEMENT, made and entered into this 21st day of April,
2004, by and among Assured Guaranty Ltd., a corporation organized and existing
under the laws of Bermuda, having its principal place of business in Hamilton,
Bermuda (the “Company”), and James Michener, Pierre Samson, and Robert Mills,
as trustees (the “Trustees”),


 


WITNESSETH THAT:


 


WHEREAS, the Company has established the Assured Guaranty Ltd.
Replacement Award Plan  (the “Plan”) to
provide certain employees and other persons providing services to the Company
and to subsidiaries of the Company (individually, “Employer” and collectively,
“Employers”) with benefits (the “Participants”); and


 


WHEREAS, it is intended that the Trust will provide a vehicle for the
accumulation of assets for the purpose of making payments under the Plan and
for such other corporate purposes as are consistent with the terms of the Trust
and that the Trust will constitute a grantor trust as described in
section 671 of the United States Internal Revenue Code of 1986, as amended
(the “Code”);


 


NOW, THEREFORE, in consideration of the
premises and mutual covenants herein contained, IT IS AGREED that the Trustees,
and each of them, do hereby accept their appointment as such under this Trust
Agreement, effective as of the day and year first above written;


 


IT IS FURTHER AGREED, by and among the parties hereto, as follows:


 


ARTICLE I


 


The Trust and the Plan


 


I-1.                               Name.  The Trust Agreement and Trust hereby
evidenced shall be known as the Assured Guaranty Ltd. Replacement Award Plan
Trust.


 


I-2.                               Plan.  The Secretary of the Company shall deliver
to the Trustees a certified copy of each of the Plan and a copy of any
amendments thereto for convenience of reference, but the rights, powers and
duties of the Trustees shall be governed solely by the terms of this Agreement
without reference to the provisions of the Plan.


 


I-3.                               Grantor.  The Company shall be the grantor (within the
meaning of Section 677(a) of the Code) of the Trust.


 


I-4.                               Administrator.  The Company is the Administrator of the Plan
and the Trust and the Secretary of the Company will certify to the Trustees the
names of the employees of the Company who are, from time to time, authorized to
act on behalf of the Administrator under the


 


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terms of this Agreement and to receive notices which the Trustees are
required under the terms of this Agreement to provide to the Administrator.


 


ARTICLE II


 


Management and Control of Trust Fund Assets


 


II-1.                           The
Trust Fund.  The term “Trust
Fund” means all property of every kind held by the Trustees.


 


II-2.                           Trust
Contributions.  The Company
shall contribute to the Trustees on or before today’s date the sum of US
$100.00 and may, from time to time, contribute further amounts to the Trustees
to be held, invested and distributed in accordance with the provisions of this
Agreement.


 


II-3.                           Investment Guidelines.  The Administrator may, from time to time,
establish investment guidelines for the Trustees with respect to the
investment, retention, disposition and reinvestment of the assets of the Trust
Fund by writing filed with the Trustees.


 


II-4.                           General
Powers.  Subject to the
provisions of paragraph II-3, with respect to the Trust Fund, the Trustees
shall have the following powers, rights and duties in addition to those provided
elsewhere in this Trust Agreement or by law:


 


(a)                                  to receive and hold
all contributions paid to the Trustees by the Company; provided, however, that
the Trustees shall have no duty to require any contributions to be made, or to
determine that any of the contributions received comply with the conditions and
limitations of the Plan;


 


(b)                                 to deposit any part or
all of the cash and other property of this Trust in any common trust fund,
pooled fund or other commingled investment fund maintained by the Trustees for
trust investment purposes;


 


(c)                                  to invest and
reinvest the Trust Fund in property of any kind, real or personal;


 


(d)                                 to manage, operate,
sell, contract to sell, convey, exchange, partition, transfer, abandon, and
otherwise deal with all property, real or personal, in such manner, for such
consideration, and on such terms and conditions as the Trustees shall decide;


 


(e)                                  to retain in cash
(pending investment, reinvestment or payment of benefits) any reasonable
portion of the Trust Fund and to deposit cash in any depository selected by
them;


 


(f)                                    to make payments
from the Trust Fund in accordance with paragraph III-2;


 


(g)                                 to compromise,
contest, arbitrate, settle or abandon claims and demands;


 


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(h)                                 to begin, maintain or
defend any litigation necessary in connection with the investment, reinvestment
and administration of the Trust;


 


(i)                                     to have all rights
of an individual owner, including the power to give proxies, to vote stocks, to
join in or oppose (alone or jointly with others) voting trusts, mergers,
consolidations, foreclosures, reorganizations, recapitalizations or
liquidations, and to exercise or sell stock subscription or conversion rights;


 


(j)                                     to hold securities
or other property in the name of the Trustees or their nominee or nominees, or
in such other form as the Trustees shall determine, with or without disclosing
the Trust relationship, provided that the records of the Trustees shall
indicate the actual ownership of such securities or other property;


 


(k)                                  to deposit securities
with a clearing corporation, central depository or similar organization, in
which event, the certificates representing securities, including those in
bearer form, may be held in bulk form with, and may be merged into,
certificates of the same class of the same issuer which constitute assets of
other accounts or owners, without certification as to the ownership attached
and to participate in and use a book-entry system for the transfer or pledge of
securities held by the Trustees or by a corporate depository; provided,
however, that the Trustees shall at all times maintain a separate and distinct
record of the securities owned by the Trust Fund;


 


(l)                                     to retain any
funds or property subject to any dispute without liability for the payment of
interest, or to decline to make payment or delivery thereof until final
adjudication is made by a court of competent jurisdiction;


 


(m)                               to employ agents,
attorneys, investment counsel, accountants or other persons (who also may be employed
by or represent the Company) for such purposes as the Trustees consider
desirable;


 


(n)                                 to furnish the
Administrator with such information in the Trustees’ possession as the Company
may need for tax or other purposes; and


 


(o)                                 to perform any and all
other acts which are, in the Trustees’ judgment, necessary or appropriate for
the proper and advantageous management, investment and distribution of the
Trust Fund.


 


II-5.                           Common
Fund.  Subject to the provisions
of paragraph V-2, the Trustees may administer and invest all contributions made
to it as one Trust Fund.  The Trustees
shall not be required to make any separate investment of the Trust Fund for the
account of any creditor of the Company prior to receipt of directions to make
payments of such creditor in accordance with paragraph V-2.


 


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II-6.                           Relating
to Trustees.  During any period
in which two or more Trustees are acting, the following provisions shall apply
where the context admits:


 


(a)                                  A majority of the
Trustees qualified to act may act on behalf of all Trustees by meeting, or by
writing signed without meeting, and may execute any document relating to the
Trust Fund by signing one document or concurrent documents.


 


(b)                                 The certificate of a
majority of the Trustees that they have taken or authorized any action shall be
conclusive in favor of any person relying on the certificate.


 


(c)                                  By their unanimous
written consent the Trustees may allocate any of their rights, duties or
obligations under this Trust Agreement or the Plan to any other Trustee
then acting.


 


II-7.                           Trustee Who is a Participant.  If a Trustee is a participant in a Plan, he
may not decide any matter concerning distribution of any kind to be made to him
unless such decision could be made by him under such Plan if he were not a
Trustee.


 


ARTICLE III


 


Accounting and Distribution of Trust Assets


 


III-1.                       Statement
of Account.  Within 60 days
after the last day of each fiscal year, the Trustees shall furnish to the
Administrator a written report showing the fair market value of the Trust Fund
as of that date, and all investments of the Trust Fund, and receipts and
disbursements and other transactions made by the Trustees during that fiscal
year, with respect to the Trust Fund. 
The records of the Trust may be audited at any time and from time to
time by the Administrator.


 


III-2.                       Benefit
Payments.  Subject to the
provisions of paragraph V-2, the Trustees shall make payments to Participants
in such amounts and at such times as the Administrator may certify to the
Trustees, subject to the following:


 


(a)                                  The Trustees shall
have no responsibility to inquire as to whether a payee is entitled to the
payment, or as to whether a payment is proper, and shall have no liability for
a payment made in good faith without actual notice or knowledge of the changed
condition or status of the payee.


 


(b)                                 If any check for any
payment directed to be made from the Trust Fund has been mailed by the Trustees
to the last address of the payee furnished to the Trustees and is returned
unclaimed, the Trustee shall notify the Administrator.


 


(c)                                  The Trustees may
reserve such reasonable amount from any payment as it shall deem necessary to
pay any estate, inheritance, income or other tax, charge or assessment
attributable to any payment or may require such releases or other document from
any taxing authority and such indemnity from the intended payee as the Trustee
shall deem necessary for its protection.


 


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ARTICLE IV


 


Compensation, Expenses and Liability


 


IV-1.                       Compensation
and Expenses.  No compensation
shall be paid to the Trustees as such. 
The Trustees are authorized to pay from the Trust Fund (unless otherwise
paid by the Company) all of the Trustees’ reasonable expenses, taxes and
charges (including reasonable fees of persons employed by it in accordance with
subparagraph II-4(m)) incurred in connection with the collection,
administration, management, investment, protection and distribution of the
Trust Fund.


 


IV-2.                       Liability
of Trustees.  The Trustees shall not
be liable for any act or failure to act in the performance of duties under this
Agreement, unless such action or failure to act is dishonest, constitutes
negligence or is in willful violation of the law.  The Trustees shall not be liable for following in good faith any
direction of the Administrator given in accordance with the terms of this
Agreement.


 


ARTICLE V


 


Trust Fund Assets


 


V-1.                           Use
of Trust Assets.  Subject to the
provisions of paragraph V-2 and the provisions of paragraphs X-1 and X-2, the
assets of the Trust shall be used for the purpose of providing benefits under
the Plan.


 


V-2.                           Claims
of Creditors.  Notwithstanding
any provision of this Trust Agreement, the assets in the Trust Fund shall be
subject to the claims of the general creditors of the Company if such claims
are not satisfied by payment from the other general assets of the Company,
because of the Company’s insolvency (as described below).  The Chairman of the Board of Directors and
the Chief Executive Officer of the Company shall notify the Trustees of the
Insolvency of the Company within three days of receipt of knowledge of such
Insolvency.  Upon receipt of such notice
or an applicable court order, the Trustees shall hold assets of the Trust Fund
for the benefit of its general creditors, and shall suspend payment of benefits
under the Plan which would be charged to the Trust until the Trustee has
determined that the Company is no longer Insolvent or pursuant to a court
order.  The Trustees shall have no duty
to inquire whether the Company is Insolvent. 
The Trustees may rely on such evidence concerning the Company’s
insolvency as may be furnished to the Trustees by the Company.  The Company shall be considered as
“Insolvent” for purposes of this Trust agreement if it is (i) unable to pay its
debts generally as they become due or (ii) engaged as a debtor in a proceeding
under the Bankruptcy Code of the United States (11 U.S.C. - 101 et. seq.) or
any other law of any jurisdiction for the relief, liquidation or rehabilitation
of debtors.


 


V-3.                           Claims of Participants.  The principal of the Trust, and any earnings
thereon shall be held separate and apart from other funds of Company and shall
be used exclusively in accordance with and in furtherance of the goals of the
Plan, subject to the provision paragraph V-2 hereto.  Neither the Participants in the Plan nor the Plan shall have any
preferred claim on, or


 


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any beneficial ownership in, any assets of the Trust, or be entitled to
any payment from the Trust, and all rights of a Participant created under any
of the Plan shall constitute unsecured contractual rights of the
participant.  It is intended that
neither the Plan nor the Trust shall be subject to the provisions of part 4 of
title I of the Employee Retirement Income Security Act of 1974, an amended, and
neither the Participants nor the Plan shall have any right to require the
Company to make any contribution to the Trust.


 


V-4.                           Assets Contributed by the Company.
Notwithstanding any provision of the Trust to the contrary, any ordinary shares
of the Company (“Assured Shares”), contributed to the Trust by the Company and
held in a fund intended to be invested primarily in Assured Shares, which
Assured Shares or fund is held in the Trust for the benefit of the employees or
service providers of any Employer, shall be subject to the claims of the
general creditors of such Employer as well as to the claims of the general
creditors of the Company.  With respect
to Assured Shares and to any fund intended to be invested primarily in Assured
Shares which is held in the Trust, references to the “Company” in paragraphs
V-1, V-2 and V-3 of this Article V shall be interpreted to also refer to
such Employer.  Upon the termination of
the Trust, any such Assured Shares remaining in the Trust shall revert to the
Company.


 


ARTICLE VI


 


Tax Matters


 


This Trust Agreement is intended to
constitute a grantor trust, as described in section 671 of the Code.  The Company acknowledges that all income of
the Trust is attributable to it as owner of the Trust assets for income tax
purposes and will be income to the Company.


 


ARTICLE VII


 


Miscellaneous


 


VII-1.                   Disagreement
as to Acts.  If there is a
disagreement between the Trustees and anyone as to any act or transaction
reported in any accounting, the Trustees shall have the right to have its
account settled by a court of competent jurisdiction.


 


VII-2.                   Person
Dealing with Trustees.  No
person dealing with the Trustees shall be required to see to the application of
all money paid or property delivered to the Trustees, or to determine whether
or not the Trustees are acting pursuant to any authority granted under this
Trust Agreement.


 


VII-3.                   Evidence.  Evidence required of anyone under this Trust
Agreement may be by certificate, affidavit, document or other instrument which
the person acting in reliance thereon considers pertinent and reliable, and
signed, made or presented by the proper party.


 


VII-4.                   Waiver of
Notice.  Any notice required
under this Trust Agreement may be waived by the person entitled thereto.


 


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VII-5.                   Counterparts.  This Trust Agreement may be executed in any
number of counterparts, each of which shall be deemed an original, and no other
counterpart need be produced.


 


VII-6.                   Governing
Laws.  This Trust Agreement
shall be construed and administered according to the laws of Bermuda.


 


VII-7.                   Successors,
Etc.  The provisions of this
Trust Agreement shall be binding on the Company and the Trustees and their
successors and the Participants and their respective heirs and legal
representatives.


 


VII-8.                   Service
of Legal Process.  If the
Trustees receive service of summons, subpoena or other legal process of any
court with respect to any action relating to the Plan or this Trust Agreement,
it shall, as soon as practicable, inform the Administrator of such service and
the Trustees shall promptly provide the Administrator with a copy of the
document served.


 


ARTICLE VIII


 


Changes of Trustees


 


VIII-1.               Resignation.  A Trustee may resign at any time by giving
90 days’ advance written notice to the Company, and to any other Trustee or
Trustees then acting.


 


VIII-2.               Removal of
Trustee.  The Company may remove
a Trustee by giving 30 days’ advance written notice to that Trustee and to any
other Trustee or Trustees then acting. 
The Company shall fill a vacancy in the office of the Trustees as soon
as practicable by writing filed with the person or entity appointed to fill the
vacancy and with any other Trustee or Trustees then acting; provided, however,
that there must always be at least one Trustee acting.


 


VIII-3.               Powers Pending Appointment of
Successor Trustee.  If a vacancy
in the office of Trustee exists, the remaining Trustee or Trustees may exercise
all of the Trustees’ powers until the vacancy is filled.


 


VIII-4.               Duties of Resigned or Removed
Trustees and of Successor Trustee. 
If all the Trustees resign or are removed, they shall promptly transfer
and deliver the assets of the Trust Fund to the successor Trustee or Trustees,
after reserving such reasonable amount as it shall deem necessary to provide
for expenses and any sums chargeable against the Trust Fund for which it may be
liable.  Within 120 days, the resigned
or removed Trustees shall furnish to the Company and the successor Trustee or
Trustees an account of the administration of the Trust from the date of their
last account.  Each successor Trustee
shall succeed to the title to the Trust Fund vested in his predecessor without
the signing or filing of any further instrument, but any resigned or removed
Trustee shall execute all documents and do all acts necessary to vest such
title of record in any successor Trustee. 
Each successor Trustee shall have all the powers, rights and duties
conferred by this agreement as if originally named as Trustee.  No successor Trustee shall be personally
liable for any act or failure to act of a predecessor Trustee.


 


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ARTICLE IX


 


Amendment, Revocation and Termination


 


IX-1.                      Amendment
and Revocation.  This Trust
Agreement and the Trust created hereby may be amended, revoked or terminated by
the Company at any time, provided that no amendment shall materially change the
rights, duties and responsibilities of the Trustees without their consent.


 


IX-2.                      Distribution of Assets Upon
Revocation or Termination.  Upon
revocation or termination of this Trust by the Company, the Trustees shall,
subject to the provisions of paragraph V-2 and to the Trustees’ reserving such
reasonable amount as they shall deem necessary to provide for expenses and any
sums chargeable against the Trust Fund, distribute the assets of the Trust to
the Company.


 


IN WITNESS WHEREOF, the Company has caused these presents to be signed
by its duly authorized officer and the Trustees have set forth their hands and
seals as of the day and year first above written.


 


	
   

  	
  Assured Guaranty Ltd.

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By  James M. Michener

  
	
   

  	
  Its  General Counsel &
  Secretary

  
	
   

  	
   

  
	
   

  	
  /s/ James M. Michener

  	
   

  



 


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